New National Origin Definition Broadened to Curb Workplace Racism
National origin discrimination protects individuals who were either born in or have ancestry from a country outside of the United States. Under Title VII of the federal Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC) regulates discrimination for private sector employers with 15+ employees. Effective July 1, 2018, California’s Fair Employment and Housing Council (FEHC) expanded protections, clarified “national origin” and “national origin groups” definitions, and defined permissible and prohibited employer policies about language requirements, immigration status inquiries, and height/weight criteria.
The California-specific regulation expands national origin and national origin groups to include:
- Physical, cultural, or language restrictions
- Marriage or association to a national group
- Tribal affiliation
- Membership or association with a national group of origin
- Religious affiliation
- Name association with national origin
No one in California can be denied employment based on any of the reasons listed above. Employers will further be prohibited from discriminating against applicants and employees on the basis of accents. In addition, fluency and English-only requirements will not be allowed in most cases.
- Employers cannot inquire about immigration status unless the inquiry is job-related and a business necessity.
- Review your EEOC policies to update language barrier restrictions. Language-only rules are unlawful unless they meet a three-prong test: 1) Is there a business necessity? (specific criteria applies), 2) Has the employer met specified notice requirements?, 3) Is the restriction “narrowly tailored?”
- Review any other policies that address height and weight restrictions. Any restrictions must meet a business necessity.
- Understand that English-only rules can’t be enforced during an employee’s non-work time (i.e., breaks, lunches, unpaid employer events).
- Conduct training for all hiring managers about compliant hiring, firing, and disciplinary actions to reduce the risk of national origin discrimination claims.
Parity in Pay Ordinance Effective July 1, 2018
San Francisco is the latest city to enact restrictions on how employers inquire about an applicant’s pay history. The Parity in Pay Ordinance seeks to close the gender pay gap for women and minorities by limiting pay disparities over the course of people’s careers.
- Remove salary history questions from your hiring applications
- Train hiring managers and supervisors on how they can and can’t discuss pay history.
- Tread lightly when it comes to asking applicants about their “pay expectations.” This is still allowed for negotiation purposes, but no one can pressure an individual to discuss their previous wages.
- Update your organization’s interview questions. Remember: This ordinance affects verbal conversations too.
11 California City Minimum Wage Increases
As a result of various California minimum wage increases, you may need to update the labor posters that you display at your locations as well as your payroll processes.
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